Citation Nr: 0311253
Decision Date: 06/02/03 Archive Date: 06/10/03
DOCKET NO. 02-01 086A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Non-receipt of a retroactive payment in the amount of $3,552
from a rating decision dated in September 1983 awarding non
service-connected pension benefits effective February 1,
1983.
REPRESENTATION
Veteran represented by: Clayte Binion, Attorney at law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Counsel
INTRODUCTION
The veteran served on active duty from November 1945 to
February 1949.
This case comes to the Board of Veterans' Appeals (the Board)
on appeal from an adverse decision issued in November 2000
from the Department of Veterans Affairs (VA) Regional Office
(RO) in Waco, Texas.
Matter currently under appellate review
In March 1998, the Board remanded the issue of the veteran's
entitlement to a waiver of overpayment of pension benefits in
the amount of $1,791 to the RO for readjudication under the
provisions of Public Law 101-237. In a decision issued in
May 1998, the Committee on Waivers and Compromises of the RO
granted the veteran's request for waiver of the $1,791
overpayment. The record shows that the overpayment in
question was refunded in full to the veteran. Accordingly,
that issue (Board Docket # 97-20 089A) is no longer in
dispute and will not be further addressed in this decision.
The issue listed on the title page was referred to the RO by
the Board in the Introduction section of its March 1998
remand. As noted above, an adverse decision was issued in
November 2000. Following submission of a timely notice of
disagreement by the veteran's attorney in November 2000, the
veteran through subsequently filed a substantive appeal (VA
Form 9) in June 2001 which the basis of the appeal was
alleged to be the RO's "error in failing to issue a SOC
following the filing of a [notice of disagreement]". VA
Regional Counsel sent a letter to the veteran's attorney in
January 2002 which advised that the letter would be
considered the statement of the case on this issue. The
veteran's attorney subsequently indicated that he wished to
[continue the] appeal. Thereafter, a supplemental statement
of the case was furnished to the veteran in September 2002,
following receipt by the RO of additional information and
evidence.
Following transfer of the claims file to the Board in
December 2002, this issue was assigned a new docket number
(Board Docket # 02-01 086A) because the waiver issue
discussed above was granted in full and the matter of the
non-receipt of the retroactive payment of the $3,552 pension
check constitutes a separate appeal.
It is further noted that a related issue involving the
alleged non-receipt of pension checks in the amount of $68 in
1993 was addressed by the RO in its November 2000 decision
and by the Regional Counsel letter/statement of the case of
January 2002. There is no indication that the veteran
perfected an appeal as to this matter, and hence, that matter
is not before the Board. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. §§ 20.200, 20.202, 20.302 (2002); see Archbold v.
Brown, 9 Vet. App. 124, 130 (1996) [appellate review is
perfected by the claimant's filing of a substantive appeal
after a statement of the case is issued by VA].
FINDINGS OF FACT
1. The veteran was awarded VA non service-connected pension
benefits by rating decision in September 1983, effective from
February 1, 1983.
2. A check for retroactive pension benefits in the amount of
$3,552 was issued on October 1, 1983 and mailed to the
veteran's address of record; there is no evidence showing
that this check was returned by the Postal Service as
undeliverable.
3. No information or evidence concerning the alleged non-
receipt of the $3,552 pension check appears of record until
May 1990, at which time the veteran's former representative
indicated in a memorandum to a United States Senator that the
veteran had claimed he never received the $3,552 check.
4. The veteran filed a formal claim in January 1994
specifically alleging that he did not receive the October
1983 check in the amount of $3,552.
5. Replacement or re-issuance of the October 1, 1983 check
in the amount of $3,552 is not authorized because the
veteran's claim was filed more than six years after accrual
of the claim.
CONCLUSION OF LAW
The veteran's claim alleging non-receipt of the October 1,
1983 VA pension award check in the amount of $3,552 was not
timely filed and he is therefore barred from seeking
entitlement to replacement or re-issuance of this check.
VAOPGCPREC 19-95, 61 Fed. Reg. 10063 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent law and regulations and their application to the
facts and evidence.
The VCAA
The Board first notes that because this case is being decided
solely based on the application of the pertinent law to the
facts, as fully detailed below, the Veterans Claims
Assistance Act of 2000, 38 U.S.C.A. § 5103A (West 2002)
(VCAA) is not for application. Specifically, the Board finds
that since the material facts are not in dispute, there is no
reasonable possibility that further assistance under the VCAA
would aid in substantiating the claim. See Manning v.
Principi, 16 Vet. App. 534, 542-3 (2002) and cases cited
therein [the VCAA has no effect on an appeal where the law,
and not the underlying facts or development of the facts, is
dispositive of the matter].
Factual background
The evidence of record shows that the veteran was awarded non
service-connected pension benefits by rating decision in
September 1983, effective from February 1, 1983. A letter
was sent to the veteran to his address of record informing
him of this award. There is no evidence showing that the
letter was returned as undeliverable by the United States
Postal Service. The evidence of record also shows that a
check for retroactive pension benefits in the amount of
$3,552 was issued on October 1, 1983 and mailed to the same
address. There is no evidence showing that this check was
returned by the Postal Service as undeliverable.
Thereafter, the record shows that the veteran contacted the
RO by telephone in November 1989 and requested an audit of
his pension account. At that time, he had a pending claim
for waiver of an overpayment and it appears he was requesting
this audit in connection with that claim. The record does
not indicate that he was at that time alleging non-receipt of
any pension checks mailed to him. In response, the RO sent
him a detailed audit in December 1989, which specifically
indicated that he was paid $3,552 on October 1, 1983. He did
not at that time file any response indicating that he was not
paid this amount.
No information or evidence concerning the alleged non-receipt
of the $3,552 pension check appears of record until May 1990,
at which time the veteran's former representative of record
sent a memorandum to a United States Senator requesting
assistance in connection with the aforementioned waiver of
overpayment claim. In this memorandum, the representative
stated on page 2 that the veteran had claimed he never
received the $3,552 check.
The record also shows that the veteran appeared at a hearing
at the RO in December 1991, also in connection with his then
pending waiver claim, and testified that it was "proven" he
was not paid the $3,552 retroactive award of pension
benefits. See the December 1991 Hearing Transcript at page
27, of record. The Board notes that he did not provide any
specific details concerning how it was "proven" he did not
receive this check. It does not appear that the RO responded
to the representative's statement of May 1990 or the
veteran's testimony of December 1991.
The veteran filed a formal claim in January 1994 specifically
alleging that he did not receive the October 1983 check in
the amount of $3,552. He claimed instead that the first
check he received was in November 1983 in the amount of
$444.00. See Statement in Support of Claim, VA Form 21-4138,
dated January 14, 1994.
[The above-cited December 1989 audit report shows that $444
was the second payment made on his pension account and that
the retroactive payment for $3,552 which is the subject of
this appeal was the first payment.]
The veteran alluded to the alleged non-receipt of this check
in additional statements (June 1997) and hearing testimony
(October 1996 and August 1997) offered in connection with his
waiver claim.
As noted in the Introduction above, in the Board's March 1998
remand of the waiver issue, since resolved, this matter was
referred to the RO.
The record shows that a second audit of the veteran's pension
account was completed in June 2000; this audit indicated that
the initial payment of a retroactive award of pension
benefits was made on October 1, 1983 in the amount of $3,552.
In its letter-decision of November 2000, the RO cited to the
Barring Act, 31 U.S.C. § 3702(b), in support of its decision
that the veteran was barred from filing a claim against the
Government because his January 1994 claim alleging non-
receipt of the October 1983 pension check was filed more than
six years after payment was made on the check. Further
details concerning this Act will be set forth below, but in
substance, the Barring Act states that a claim against the
Government presented to the Comptroller General of the
Department of Treasury under sec. 3702 for settlement which
is not received by the Comptroller General within six years
after the claim accrues is barred.
The record further shows that an Internal Memorandum dated in
January 1998 that had been prepared by the RO's Regional
Counsel addressing the question of limitations on payability
of non-benefit checks canceled pursuant to the Competitive
Equality Banking Act of 1987 was associated with the
veteran's claims file. In that memorandum, which does not
appear to be specific to any particular claim, VA Regional
Counsel indicated that it was VA's policy that for veterans'
benefits checks there was a six-year limitation running from
the date of issuance of the check during which time a payee-
beneficiary could file a claim alleging non-receipt or non-
payment of the check. The Regional Counsel further indicated
that it believed this policy was in accord with applicable
law, specifically, a Comptroller General opinion, 73 Comp.
Gen. 292 (1994), and VA General Counsel opinions, VAOPGCPREC
19-95 (July 1995) and Undigested Opinion of January 19, 1996,
copies of which were attached with the memorandum and which
will be further discussed below.
As noted above, the veteran's attorney filed a notice of
disagreement in November 2000 in response to the RO's letter-
decision of that month. Thereafter, the attorney filed a
substantive appeal in June 2001 arguing that the appeal was
being pursued on the basis of the RO's failure to furnish the
veteran a statement of the case addressing the allegation of
non-receipt of the $3,552 pension check. In response, the
RO's Regional Counsel sent the attorney a letter in January
2002, which indicated that the veteran's claim for re-
issuance of the $3,552 check was barred by law and
regulations of the Department of Treasury and therefore was
not an appealable claim to the Board or the United States
Court of Appeals for Veterans Claims (the Court), as it did
not involve application of VA law and regulations. This
letter further advised the attorney that the letter itself
constituted the statement of the case with respect to this
matter. In subsequent communications to the RO, the veteran
through his attorney indicated that he wished to [continue
the] appeal.
The record also shows that in January 2001, the RO initiated
a tracer action on the October 1, 1983 check in the amount of
$3,552. In a response received the same month, the
Department of Treasury notified the RO that the check in
question had been negotiated, but that a copy of the check
was no longer available. On this latter point - availability
of a copy of the check, the Board notes that a "Frequently
Asked Questions" print-out from the Treasury Department's
website was associated with the veteran's claims file, and
this print-out indicated that the retention period for paid
Treasury checks was six years, seven months, following which
the original check, check copy or check information was no
longer available.
Regarding the Treasury Department's tracer action, the record
shows that the veteran's attorney was later advised that the
code, "25 Paid" noted on the tracer report was simply the
numeric code Treasury used for all inquiries that resulted in
the "No Further Information Available" descriptive response
which followed the denotation of that code.
The RO furnished the veteran and his attorney a supplemental
statement of the case in September 2002, which addressed the
development matters undertaken with regard to this issue and
informed the veteran that the VA had fulfilled its obligation
regarding payment of the retroactive award of pension
benefits in the amount of $3,552 by check issued by the
Department of Treasury on October 1, 1983.
Analysis
The veteran maintains that he never received the check for
retroactive pension benefits. In essence, he has demanded
that VA either prove to him that he was paid or pay him the
$3,552.
Jurisdiction of Board to decide claim
As noted above, it appears that VA Regional Counsel has taken
the position that the matter here under consideration,
whether or not the veteran received a check from VA, is not
appealable to the Board or to the Court. Initially, the
Board finds that the issue on appeal, non-receipt of a
retroactive payment in the amount of $3,552 from a rating
decision dated in September 1983 awarding non service-
connected pension benefits effective February 1, 1983, is an
appealable claim subject to the Board's jurisdiction. The
Board of course takes no position as to whether this matter
is appealable to the Court. But see 38 U.S.C. § 7252.
The law provides that the Secretary of VA shall decide all
questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of benefits
by the Secretary to veterans or the dependents or survivors
of veterans. See 38 U.S.C.A. § 511(a) (West 2002) (emphasis
added). The law provides further that the jurisdiction of
the Board extends to all questions in a matter which under
section 511(a) is subject to a final decision on appeal by
the Secretary.
See 38 U.S.C.A. § 7104(a) (West 2002). The applicable
regulation provides that the includes, but is not limited to,
a considerable "laundry list" of subjects. The matter of
non-receipt of a check from VA is not specifically mentioned.
See 38 C.F.R. § 20.101 (2002).
The Board has been unable to identify any similar issue which
has been adjudicated by it or by the Court. However, because
the regulation also includes the broad "catch all" phrase
"is not limited to", it would appear reasonable to conclude
that the regulation cited above would encompass a claim like
this one where the veteran alleges that he did not receive
monies from VA that he was legally entitled to. Moreover,
although VA law and regulations are not directly for
application here, this case nevertheless involves application
of "a law that affects the provision of benefits by the
[VA]" within the meaning of 38 U.S.C.A. § 511(a). This
statutory language is read by the Board as providing
authority for VA to decide an issue under non-VA law and
regulations where those laws and regulations affect the
provision of VA benefits.
In addition to the above, it appears from the findings and
conclusions reached by the VA's General Counsel in precedent
opinion VAOPGCPREC 19-95, which will be discussed in greater
detail below, that a veteran's claim alleging non-receipt of
a Treasury check issued in connection with payment of VA
benefits is a matter which can be addressed by VA.
Accordingly, the Board concludes that it has jurisdiction to
a issue a final decision on the veteran's claim alleging non-
receipt of the October 1983 pension check. The Board will
therefore proceed to a disposition of the appeal.
Summary of pertinent law: VAOPGCPREC 19-95, the Barring Act,
31 U.S.C. § 3702(b), and Competitive Equality Banking Act of
1987
As noted above, VA's General Counsel issued a precedent
opinion in July 1995 addressing the issue of time limitations
on claims resulting from non-negotiation of veterans' benefit
checks by the payee. See VAOPGCPREC 19-95, dated July 12,
1995. In pertinent part, the VA General Counsel held that
the six-year limitation period under the Barring Act, 31
U.S.C. § 3702(b), is generally applicable to claims for
unpaid veterans' benefits resulting from non-negotiation of
benefit checks by the payee, and is applicable as well to
claims based upon veterans' benefits checks claimed to have
been lost, stolen, cashed on a forged endorsement, or never
received.
In discussing the relevant legislative history, the General
Counsel first noted that the Competitive Equality Banking Act
of 1987 (CEBA) provided for cancellation of all unpaid
Treasury checks issued prior to October 1, 1989. However,
the General Counsel also noted that the CEBA included a
saving clause, codified at 31 U.S.C. § 3702(c)(2), which
stated, as amended, that nothing in the provision pertaining
to cancellation of stale checks "affects the underlying
obligation of the United States, or any agency thereof, for
which a Treasury check was issued." The General Counsel
went on to cite Veterans Benefits Administration (VBA)
Circular 20-92-12 (May 4, 1992), for the authority that VA
had the underlying obligation to settle all claims submitted
by beneficiaries for checks issued prior to October 1, 1989,
that were canceled by the Department of Treasury. The
General Counsel added that this VBA circular was consistent
with its VAOPGCADV 45-90 (O.G.C. Adv. 45-90), which held that
VA remained obligated on an underlying obligation to a payee
whose check was canceled pursuant to the CEBA due to late
presentation.
Notwithstanding the above, the General Counsel pointed out
that the advisory opinion did not consider the applicability
of the so-called Barring Act, ch. 788, 54 Stat. 1061 (1940),
which as noted above is codified, as amended, at 31 U.S.C.
§ 3702(b).
As alluded to above, the General Counsel explained that
section 3702(b) of the Barring Act provides that a claim
against the Government presented to the Treasury's
Comptroller General under section 3702 for settlement which
is not received by the Comptroller General within six years
after the claim accrues is barred. The Barring Act was
intended to relieve the Government of the need to retain and
review old records for the purpose of settling old claims.
The General Counsel added that the term "claim" had been
interpreted to include an original claim for money not
received, i.e., a claim on the underlying obligation
liquidated by a Treasury check.
However, prior to the passage of the CEBA, the General
Counsel explained further that the Barring Act had no
practical effect with regard to claims based on uncashed
Treasury checks which had been issued to satisfy obligations
of the Government. This was the case because prior to the
CEBA, checks drawn on the U. S. Treasury generally could "be
paid at any time." See 31 U.S.C.A. § 3328(a)(1) (1983). As
a result, the General Counsel pointed out that unpaid
Treasury checks could be cashed at any time, even if a claim
on the underlying obligation was barred by the Barring Act's
six-year statute of limitations.
The CEBA, however, established a time limit on the
negotiability of Government checks. As noted above, under
the CEBA, Treasury checks issued prior to October 1, 1989,
have been canceled; specifically, section 1004(b) of the CEBA
amended section 3702(c) to require that "[a]ny claim on
account of a Treasury check shall be barred unless it is
presented to the agency that authorized the issuance of such
check within 1 year after the date of issuance of the check
or the effective date of this subsection, whichever is
later."
The General Counsel went on to explain that the Treasury's
Comptroller General subsequently held that the obligation
underlying a Treasury check which had become nonnegotiable
pursuant to the CEBA was subject to the six-year limitation
imposed by 31 U.S.C. § 3702(b)(1). See Op. Comp. Gen. B-
244431.2 2-4 (Sept. 13, 1994) (cite as 73 Comp. Gen. 292,
1994 WL 508956 (C.G.)); see also Op. Comp. Gen. B-244431
(Oct. 8 1991) [the conclusions of which were affirmed by Op.
Comp. Gen. B-244431.2]. The Comptroller General further
explained in its opinion that the CEBA saving clause, 31
U.S.C. § 3702(c)(2), merely provided that the CEBA had no
effect on the underlying obligation, i.e., that the CEBA did
not terminate, preserve, or resurrect the obligation
underlying a Treasury check.
The VA General Counsel next quoted a relevant provision of
the Comptroller General's opinion on the matter of when a
claim had to be filed, "[t]he preservation or termination of
an underlying obligation subject to section 3702(b) continues
to be controlled by whether a claim has been received by the
Comptroller General or the appropriate agency within 6 years
of the date of accrual of the claim." See Op. Comp. Gen. B-
244431.2 at 4-5. On this point, the Comptroller General
specifically rejected the argument that, because the CEBA did
not amend 31 U.S.C. § 3328(c), the obligation underlying a
Treasury check was enforceable in perpetuity, and therefore
the check could be reissued in perpetuity. Id. The
Comptroller General pointed out that section 3328(c) says
only that a limitation imposed on a claim against the United
States under section 3702 does not apply to an unpaid check
and that the statutory provision does not say that a
limitation imposed on a claim against the United States does
not apply to the obligation underlying the check.
The VA General Counsel then explained in its precedent
opinion 19-95 how its opinion was consistent with advice
previously provided by the General Accounting Office (GAO) to
VA's Deputy Assistant Secretary for Financial Management in
Op. Comp. Gen. B-243536 (Sept. 7 1993) [holding that a claim
against the Government on the obligation underlying a pre-
October 1, 1989 check presented to the GAO or the agency
whose activities give rise to the claim more than six years
after the claim accrues is explicitly barred]. The General
Counsel added that the above-cited interpretations were also
seemingly consistent with the intent of Congress based on
House committee findings made in connection with a private
relief bill.
On the basis of the above, the VA General Counsel
specifically found no exemption from the six-year statute of
limitations of 31 U.S.C. § 3702(b)(1) applicable to
obligations for which checks were drawn on VBA appropriation
accounts. The General Counsel added that section 3702(b) had
been strictly enforced by the Comptroller General, which
authorized the Comptroller General to "settle all claims
. . . against the United States Government," except as
otherwise provided.
It was further noted by the General Counsel in precedent
opinion 19-95 that the six-year limitation applied generally
to such claims with limited exceptions, and that the only
exceptions recognized in section 3702(b) were: where an
exception was specified in chapter 37 of title 31, U. S.
Code, or another law; as to a claim by a state, the District
of Columbia, or a United States territory or possession; and,
in the event that a claim of a member of the armed forces
accrued during war or within 5 years before a war begins.
The General Counsel pointed out with respect to these
exceptions that it could find no basis in chapter 37 of title
31, U. S. Code, or in any other provision of law, for an
exemption from the six-year statute of limitations for claims
involving veterans' benefits appropriations.
As mentioned above, VA General Counsel's Undigested Opinion
of January 19, 1996 addressed additional concerns regarding
time limits on claims resulting from non-negotiation of
checks by a payee. In this opinion, the General Counsel
stated that the GAO's August 1995 clarification of the
Treasury Department's Op. Comp. Gen. B-244431.2 (Sept. 13,
1994) did not change its holding in VAOPGCPREC 19-95.
Relying on Op. Comp. Gen. B-244431.2, the General Counsel
restated its holding in precedent opinion 19-95, as follows:
a. The proceeds of uncashed veterans'
benefits checks which have been canceled
under the CEBA are not payable unless a
claim for them is made within six years
after the claim accrued, regardless of
whether the benefit checks were drawn on
veterans' benefit appropriations.
b. Claims based on checks which have
been lost, stolen, or paid on a forged
endorsement, or which were never
received, and which have been canceled
under the CEBA, are also barred unless
made within six years after the claim
accrued.
In its August 1995 clarification, the GAO indicated that, not
only does the timely receipt of a claim on the underlying
obligation toll the six-year limitation period, the tolling
continues without regard to the subsequent issuance of a
check in liquidation of the underlying obligation. In
responding to this clarification, the VA General Counsel
stated the following:
The GAO's recent clarification has no
effect on the holding of VAOPGCPREC 19-
95. The holding of that opinion is
entirely consistent with the
clarification of Op. Comp. Gen. B-
244431.2. A claim on the obligation
underlying a veterans' benefit check
canceled under the CEBA is barred unless
received within six years after the
accrual of the claim on the underlying
obligation. If a claim on the underlying
obligation was received within six years
after the accrual of the claim, then the
canceled check may be replaced even if
more than six years have passed since the
claim on the underlying obligation
accrued.
The VA General Counsel added that the significance of the
GAO's clarification varied depending on the kind of
obligation underlying issuance of the canceled check and when
a claim on that underlying obligation accrued. For example,
the General Counsel stated that VAOPGCPREC 19-95 dealt with
checks issued monthly in payment of VA's obligation to pay
dependency and indemnity compensation (DIC) benefits for each
month an eligible beneficiary survived. In such a case, the
General Counsel stated that it would appear that a claim for
a particular month's benefits accrued when a beneficiary who
had applied for and been found eligible for DIC survived
until the end of the month for which the benefits in question
were payable. Thus, the General Counsel stated that each
month's claim was distinct and accrued at a different time,
and therefore, a timely claim for the proceeds of a canceled
check issued for a particular month would not affect the
limitation period applicable to a claim for the proceeds of a
check issued for any other month. The General Counsel
distinguished this situation, i.e., claims for periodic VA
benefits, from a claim based on a contract, which accrued
upon the completion of the contractor's work, and which could
therefore toll the six-year claims limitation period and
preserve the underlying claim, necessitating a single timely
claim for the amount due under a contract when the work was
finished on the contract.
The Board is bound in its decisions by the regulations, the
Secretary's instructions, and the precedent opinion of the
chief legal officer of VA. 38 U.S.C.A. 7104(c0.
Discussion of pertinent law as applied to facts in case
The Board has carefully reviewed the evidence of record and
the pertinent law and precedent legal authority discussed
above, and based thereon, has determined the following:
? VAOPGCPREC 19-95: The outcome of this case is
controlled by the legal findings and conclusions set
forth in the precedent opinion of VA's General Counsel
in VAOPGCPREC 19-95, which the Board is legally
obligated to follow. See 38 U.S.C.A. § 7104(c) (West
2002).
As discussed above, the VA General Counsel held in precedent
opinion 19-95 that the proceeds of uncashed veterans'
benefits checks which had been canceled under the CEBA were
not payable unless a claim for them is made within six years
after the claim accrued, regardless of whether the benefit
checks were drawn on veterans' benefit appropriations, and
that additionally, claims based on checks which had been
lost, stolen, or paid on a forged endorsement, or which were
never received, and which had been canceled under the CEBA,
were also barred unless made within six years after the claim
accrued.
The facts in this case fall squarely within the terms of
VAOPGCPREC 19-95. The veteran alleges that he did not
receive a VA pension check in the amount of $3,552 that the
record shows was issued to him in October 1983, and which
would be considered canceled under the above-cited Treasury
Department guidelines given the passage of time (for checks
issued prior to October 1, 1989). The veteran has filed a
claim for payment of this check. The outcome turns on when
did his claim on the underlying obligation/non-negotiation of
a VA pension check accrue and whether it was timely filed
within the meaning of applicable law and legal authority
governing the issuance and cancellation of Treasury checks.
As these questions were interpreted in precedent opinion 19-
95, the Board is bound to apply this opinion to the facts of
this case.
? Cancellation of check: The Board initially finds that
under the CEBA, as interpreted in VAOPGCPREC 19-95, the
VA pension check in the amount of $3,552 issued to the
veteran on October 1, 1983 is considered canceled.
As noted above, the CEBA provides for cancellation of all
unpaid Treasury checks issued prior to October 1, 1989.
While the Treasury Department's tracer inquiry completed in
January 2001 indicated that the October 1, 1983 check in the
amount of $3,552 was in fact negotiated, this inquiry did not
verify who might have negotiated the check. Because the
veteran maintains that he never received the check, it is at
arguable that it might have been stolen and negotiated by
someone else. The Board will therefore find, for purposes of
this claim, that the check went "unpaid" to the veteran-
beneficiary within the meaning of the CEBA. In practical
terms, and without necessitating further analysis of the
veteran's credibility on the issue of whether he actually
received the check, the Board will consider that the check in
question was lost, stolen or otherwise never received by the
veteran, which places it under the category of claims subject
to the holding in VAOPGCPREC 19-95.
Accordingly, the legal findings and conclusions made by the
General Counsel in VAOPGCPREC 19-95 regarding the
applicability of the Barring Act to claims such as this one,
as well as the VA authority cited therein regarding VA's
obligation to settle claims based on veterans' benefits
checks issued prior to October 1, 1989 that were canceled by
the Treasury Department, are germane to the Board's
disposition of this case. These points of law will be
applied to the facts of this case, as set forth in greater
detail below.
? Accrual of claim: The Board finds that the veteran's
claim on the underlying obligation/non-negotiation of
check arising from payment of the VA pension benefits in
the amount of $3,552 accrued at the end of the month for
which those benefits were paid, which was October 31,
1983.
As detailed above in the Background section above, the audits
completed on the veteran's pension account in December 1989
and June 2000 clearly show that the check in the amount of
$3,552 was issued on October 1, 1983. It does not appear the
veteran disputes what these reports reflect - that a check
for the award of VA retroactive pension benefits in the
amount of $3,552 was in fact issued on October 1, 1983.
While he disputes the fact that he actually received the
check, he has submitted no evidence which places into doubt
the accuracy of these audit reports.
With these facts for consideration, the Board finds, as
interpreted by the VA General Counsel in its Undigested
Opinion of January 1996, that the veteran's claim on the
underlying obligation for payment of the $3,552 pension award
accrued on October 31, 1983, the end of the month for which
those benefits were payable. VA pension benefits, like the
DIC benefits discussed in the January 1996 Undigested
Opinion, are paid periodically, i.e., month-to-month, and
therefore, any claim on the underlying obligation for these
benefits would accrue at the end of each month for which the
benefits were paid.
Hence, for purposes of this claim, the six-year statute of
limitation imposed by the Barring Act commenced on October
31, 1983, which means that the time limit to file a claim on
underlying obligation/non-negotiation of check by payee in
the amount of $3,552 expired on or about October 31, 1989.
? Timeliness of claim: The Board finds that the veteran
did not file a timely claim on the underlying
obligation/non-negotiation by payee of the October 1983
check in the amount of $3,552, and he is not eligible to
have a check replaced or re-issued to him.
As noted above, because the check for VA pension benefits in
the amount of $3,552 was issued on October 1, 1983 and went
unpaid to the veteran-payee, under the CEBA, the check is
considered canceled, and the date of accrual of any claim
filed on the underlying obligation or non-negotiation of that
check would expire on or about October 31, 1989. In this
case, it is clear that the veteran is barred from bringing
such a claim as the evidence does not show that he filed a
claim based either on payment of the underlying obligation
for an uncashed veterans' benefits check or based on an
allegation of non-receipt of the check due to the fact that
is was lost, stolen or never received within the six-year
statute of limitations.
The earliest date the veteran raised the matter of his non-
receipt of the check is reflected by the representative's
memorandum of May 1990, which is not timely filed. There is
no earlier reference to non receipt of the check in the
record, and the veteran and his representative have pointed
to none. Later references to non receipt of the check are
also untimely.
In view of the foregoing, the Board finds that the veteran's
claim, whether considered advanced on the basis that he is
now owed payment of the underlying obligation for uncashed
proceeds of a pre-October 1989 canceled Treasury check or on
the basis that he did not negotiate the check because it was
lost, stolen or never received and therefore is entitled to
have the check replaced or re-issued to him, is explicitly
barred within the meaning of the CEBA and the Barring Act, as
interpreted by Op. Comp. Gen. B-244431.2 and Op. Comp. Gen.
B-243535, and as these laws and legal authority were
construed and applied to veterans' benefits appropriations
pursuant to VAOPGCPREC 19-95.
As alluded to above, because the veteran's claim was not
received within six years of accrual of the claim, that is,
on or before October 31, 1989, further inquiry and analysis
of whether the proceeds of the October 1, 1983 check for
$3,552 went unpaid to the veteran or whether the check was
negotiated by someone else on account of being lost, stolen
or never received by the veteran is not critical to the
Board's final decision. On this point, the Board notes that
the Treasury's tracer action inquiry in January 2001
indicated that the check had been negotiated. Copies of the
check are no longer available, however. [The Board notes
that the statutory retention period such checks is just over
six years, which appears to be coincident with the six year
statute of limitations on such claims discussed by the Board
above.] In any event, it cannot be established who actually
negotiated the check. The veteran claims he never got the
check, and the Board will presume it was stolen for purposes
of this claim. However, the outcome of this case is
unaffected by this fact. The bottom line is that the
applicable law provided the veteran a six-year window of
opportunity to file a claim alleging any improprieties
concerning the receipt and payment of the October 1, 1983
pension award check in the amount of $3,552, and the record
shows that he did not taken action in this regard. He is
therefore barred under the applicable law discussed above
from now bringing a claim for non-receipt of this check.
The Board also finds that no exceptions apply to toll the
time limitations for this particular case (i.e., a claim that
does not involve the death of the payee who received a check
but did not negotiate it, cf. 38 U.S.C. §§ 5121, 5122;
VAOPGCPREC 22-92). It was specifically pointed out by the VA
General Counsel in VAOPGCPREC 19-95 that there existed no
basis in chapter 37 of title 31, U. S. Code, or in any other
provision of law, for an exemption from the six-year statute
of limitations for claims for veterans' benefits
appropriations.
Accordingly, pursuant to VAOPGCPREC 19-95, the appeal as to
this issue must fail. Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) [where the law and not the evidence is dispositive of
the issue before the Board, as in this case, the claim is
denied because of the absence of legal merit or the lack of
entitlement under the law].
Presumption of regularity
For the purpose of completeness, the Board notes one final
point with regard to the mailing of the October 1, 1983
pension award check to the veteran's address of record.
The Court has ruled that there is a "presumption of
regularity" under which it is presumed that Government
officials have properly discharged their official duties.
Clear evidence to the contrary is required to rebut the
presumption of regularity. See Ashley v. Derwinski, 2 Vet.
App. 307, 311 (1992) [citing United States v. Chemical
Foundation, Inc., 272 U.S. 1, 14-15 (1926)]. While the
Ashley case dealt with regularity of procedures at the Board,
in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court
applied this presumption of regularity to procedures at the
RO. In this case, no clear evidence to the contrary has been
presented with which to rebut the presumption of regularity.
It is therefore presumed that the October 1, 1983 VA pension
check was sent to the veteran at his last known address of
record.
Although the veteran has challenged VA to "prove" that he
did not receive the check, as a matter of law it is the
veteran who must rebut the presumption of regularity. The
veteran has not done so.
Accordingly, the Board finds no basis to alter its above-
stated findings and conclusions regarding the timeliness of
the veteran's claim alleging non-receipt of this check based
on any alleged improprieties of VA's administrative
procedures in the mailing of the October 1983 check to the
veteran's address of record.
ORDER
The veteran's claim alleging non-receipt of the October 1,
1983 VA pension award check in the amount of $3,552 was not
timely filed; his appeal of this claim fails as a matter of
law.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.